Lincoln and the Laws of War

John Fabian Witt, a professor of legal history at Columbia University, pens an article in Slate about Lincoln’s Laws of War, and how the Bush administration supposedly attempted to destroy them. This is amusing, since when it comes to prosecuting a war George Bush is a pantywaist compared to the Great Emancipator. Witt wraps the article article around the adoption of the so-called Lieber Code, enshrined as General Order No. 100, a topic I’ve also addressed here. This codified, for the first time outside a few legal texts, the rules of warfare, and was adopted, as Professor Witt says, in large part to clarify treatment of partisans who operated on the margins of the conflict but who were quite troublesome. This is not to suggest that there were no rules before this. There were, but they operated more like the common law—an unwritten code made by soldiers, not lawyers, generally referred to as the laws and customs of war. Most of these had grown up gradually in the period since the Thirty Years War in Europe, which had been marked by unspeakable horrors against civilians.

Lincoln’s skepticism about the laws of war culminated a year later, in July 1862, in one of the Civil War’s most famous early scenes. After weeks of deadly fighting and a demoralizing Union retreat in Virginia, Lincoln traveled to the front lines to encourage more aggressive action by Gen. George McClellan’s Army of the Potomac. To win the war, Lincoln was beginning to think, the Union would have to attack the social fabric of the South. But McClellan resisted. The man known as “Little Napoleon” was one of the few Americans versed in the highly idealized rules of war handed down by the professional armies of 18th-century Europe. As McClellan saw it, the more aggressive campaign that Lincoln urged would undermine the European laws that had sought to make war resemble a kind of gentleman’s duel.

This is questionable, not the least because no one except some of Lincoln’s cabinet called McClellan “the little Napoleon.” He was, rather, “the young Napoleon.” McClellan was just carrying out Lincoln’s policy, although not nearly fast enough to suit the president. The initial thinking was that the war was a slaveholder’s rebellion without popular support, and that an aggressive military policy coupled with reaching out to the moderates (as the current phrase would have it) would speedily put an end to things. This turned out not to be the case, and Lincoln did turn to emancipation as a military policy to hurt the South. It was left up to Ben Butler, a political general, to come up with an ingenious compromise. Slaves who came under Union control would be considered “contraband of war”—much like bales of cotton—property confiscated from rebels in the course of hostilities. This preserved their status as property while at the same time striking an economic blow to the Confederacy, although of course it, like the Emancipation Proclamation, did not apply to loyal slaveholders.

As for the “highly idealized rules of war,” I doubt anyone who had studied or fought in the Napoleonic wars (as did Lieber, a Prussian who was wounded in the run-up to Waterloo) saw it that way. The partisan war against the French in Spain (the “guerrilla”) was in particular conducted with great savagery by both sides. In the Civil War individual officers valued their honor and had in many case been friends before the conflict, and in any case were constrained by the law of retaliation. If an enemy engaged in forbidden conduct, so could you. Thus when Custer hanged several of Mosby’s partisans, the Confederates retaliated by swinging off several of his men.

By mid-1863 it became clear that the Confederacy did have substantial popular support and was not going to collapse, and that efforts to win over the population were not working. Lincoln then adopted an increasingly harsh war policy that took full effect in the offensives of 1864. The South would be crushed, “subdued by the sword,” by whatever measures were necessary. The war would henceforth be against the Southern people as a whole—young and old, rich and poor, male and female, loyal and disloyal—and not just their armies. Necessity was also driven by the perception that Lincoln would not be re-elected in 1864. These measures included:

Summary dispossession or deportation of civilians regardless of their loyalties, such as addressed in Deborah Petite’s book Women Will Howl and in Gen. Ewing’s infamous General Order No. 11, (expressly approved by Lincoln) or Sherman’s summary order that all civilians evacuate Atlanta.

Arrest, prosecution and conviction of ex-congressman Clement Vallandigham by a military tribunal that apparently did not get the word about dissent being the highest form of patriotism. Lincoln commuted the sentence to extraordinary rendition deportation to the Confederacy.

Assassination of enemy leaders. Col. Ulric Dahlgren was killed on a raid on Richmond with orders to assassinate Confederate president Jefferson Davis and his cabinet. The historical consensus is that the orders were real, the only real question being how high they went. There is little doubt that the plot went up to the Secretary of War, Edwin Stanton, and I personally don’t doubt that Lincoln at least knew about it. The only real question is whether he ordered it or merely went along with it. In any case he never rebuked or punished anyone associated with it. Stanton continued as Secretary of War and Gen. Judson Kilpatrick, the raid’s leader, was promoted to lead Sherman’s cavalry in the March to the Sea.

Shelling of civilian areas of little or no military value e.g. the use of the Swamp Angel against Charleston.

Arbitrary arrest and detainment of civilians. Lincoln ignored the civilian courts and set up a parallel military court system with full power to arrest, try, and if necessary execute citizens. Recently I examined the provost marshal records for the Middle Military District (Maryland, western Virginia including the Shenandoah) and was shocked to see how easily people could be locked up indefinitely on the merest of suspicions. Sec. of War Stanton boasted that he could have anyone in the country arrested and he wasn’t kidding. In the Occupied Territories of the South the situation was even worse, and continued during Reconstruction.

Mistreatment of prisoners of war. Almost one soldier in five who entered the infamous camp at Elmira, New York, never left it alive.

I could go on but why bother? You can argue about whether these measures were necessary, but it’s hard to argue that Lincoln, who was a hands-on president when it came to running the war, was ignorant of all this or that it was just the actions of a few out of control subordinates. I’m not trying to make Lincoln out to be a monster, but the narrative of him as a wise humanitarian warmaker doesn’t hold up very well. Those who condemn Bush, whose actions would not have been noticed in the Late Unpleasantness, and praise Lincoln obviously have little idea of the ruthless, single-minded way he went about crushing the Confederacy or the lengths to which he was prepared to go to do it.

But what about the Lieber Code? As I noted in a previous post there are loopholes big enough to march and army through, and military necessity trumps fine humanitarian sentiment. Professor Ilya Somin, whom we have met previously in a discussion about secession, examines what the code permits and how it compares with today’s ideas. I would add that the Lieber Code presupposes that the first priority is to win the war, and that humanitarian considerations can be bent to this end. Today the laws of war are seen as sacrosanct and victory is considered only as an afterthought, if at all. The difference, I suppose, is that the laws and customs of war and the Lieber Code were written by soldiers or at least by those who had served as such, while today’s voluminous laws and treaties are written by lawyers and intellectuals who will never have to apply them on a battlefield.

UPDATE: Elektratig reminds me that I should have linked both to his post on the subject and to that of Professor Eric Posner. Overall I tend to go more with Posner, although I do think the Nazi comparison (Godwin, anyone?) a bit much. Still, there are some interesting comparisons here. A friend of mine, a retired Army major general, is doing a book on the British concentration camps in South Africa during the Boer War. He’s made some connections—Col. G.F.R. Henderson, Lord Kitchner’s chief of staff, wrote extensively on the American Civil War and a young Spanish officer, Valeriano Weyer, who later became infamous in Cuba for his brutality against the guerrillas, was a military attache in Washington during the same war. Both these men seem to have taken lessons with them about war on the civilian population.

War on civilians seems to go in cycles. The gentlemanly codes of the 18th Century were in large part a reaction to the horrors of the Thirty Year’s War, but these were mostly dropped during the Napoleonic era and the American Civil War, and—Posner is right—reached something of a climax in WWII. Now we seem to be in a period of reaction against it, which will in time, I predict, be replaced by another harsh war regime.

And back to the original theme of the post. Abe Lincoln did what he thought needed to be done to win the war—codes, laws, and the Constitution be damned. This did not, however, result in a totally “black flag” approach.